Judge: Thomas Falls, Case: 20PSCV00361, Date: 2022-09-06 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

Case Number: 20PSCV00361    Hearing Date: September 6, 2022    Dept: R

Cathay Bank v. National Progressive, Inc. et al. (20PSCV00361)

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Plaintiff’s MOTION TO COMPEL RESPONSES TO DEPOSITION SUBPOENA SERVED ON CHEUNG & CHU,CPA, A PROFESSIONAL CORPORATION

            Responding Party: As of 09/01, unopposed.

Tentative Ruling

Plaintiff’s MOTION TO COMPEL RESPONSES TO DEPOSITION SUBPOENA SERVED ON CHEUNG & CHU,CPA, A PROFESSIONAL CORPORATION is GRANTED, subject to sanctions in the amount of $1,022.50.

Background

This case arises from Defendant National Progress Inc.’s purported default of a promissory note.

On June 2, 2020, Plaintiff Cathay Bank filed suit against Defendants National Progressive Inc., Tony Hsu (the guarantor on the commercial loan), and Does 1 through 100 for:

1.      Breach of Promissory note,

2.      Breach of Guarantee,

3.      Foreclosure of Security Agreement, and

4.      Money Lent

On December 2, 2020, the court granted Defendants’ ex-parte application to Set Aside Default and Default Judgment.

On December 2, 2020, Defendants answered.

On January 5, 2022, the court granted Defense Counsel Carlo C. Ignacio’s Motion to Be Relieved as Counsel for Defendant National Progressive Inc.

On May 13, 2022, the court issued the following ruling: The Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion filed by CATHAY BANK, a California Banking Corporation on 03/21/2022 is Granted. Plaintiff is awarded sanctions against defendants National Progressive, Inc. and Tony Hsu in the amount of $1,650.00.

On July 22, 2022, Plaintiff filed its Second Amended Complaint (“SAC”) adding causes of actions for (5) Indebtedness, (6) Breach of Fiduciary Duty, and (7) Conversion.

On July 26, 2022, Plaintiff filed the instant Motion.

Legal Standard

Code of Civil Procedure § 1987.1, subdivision (a) states, “[i]f a subpoena requires . . . the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”  (Code Civ. Proc., § 1987.1, subd. (a), italics added.)  Subdivision (b) of Section 1987.1 states that "a party" may bring a motion to compel compliance with a subpoena pursuant to subdivision (a).  (Id., § 1987.1, subd. (b).) 

“[I]n making an order pursuant to motion made under . . . Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonably attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”  (Code Civ. Proc., § 1987.2, subd. (a).) 

 $1,375.00.

Discussion

Plaintiff makes the instant motion on the ground that “Cheung & Chu, CPA, A Professional Corporation has failed and refused to respond to a properly served Deposition Subpoena, despite representations to the contrary and despite repeated attempts by Plaintiff to elicit a response.”

On April 12, 2022, the Subpoena, along with the Modification, were served on CHEUNG & CHU. The Subpoena requested several categories of documents relating to the Defendants and directed their production by April 27, 2022. However, no documents and no objection were received in response to the Subpoena.

Therefore, CHEUNG & CHU are ordered to respond to the Subpoena, as modified, without limitation and without any objection.

Monetary Sanctions

Plaintiff seeks monetary sanctions against CHEUNG & CHU. Absent an opposition, the court finds sanctions are warranted. Plaintiff seeks $1,672.50 in sanctions [5 hours at $275/hour plus a filing fee]. Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $1,022.50 (i.e., 3.5 hours at $275/hour, plus a $60 filing fee).